IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HANNAH JONES, No. 70422-2-
Appellant. DIVISION ONE
v.
REGENCY PACIFIC, INC., UNPUBLISHED
Respondent. FILED: December 22, 2014
Cox, J. — Hannah Jones seeks to overturn a judgment on an adverse jury
verdict based on claims that the trial court failed to ensure an impartial jury and
that juror misconduct and juror bias deprived her of a fair trial. Because the trial
court did not abuse its discretion in addressing these claims, we affirm.1
Jones sued Regency Pacific, Inc. for negligence and other causes of
action after developing injuries while receiving post-operative care at one of
Regency's facilities. The parties tried the case to a jury in King County Superior
Court.
During the presentation of Jones's case in chief, Leann Cox (Juror 11)
informed the bailiff that she lived in the same neighborhood as one of Regency's
1We grant the Motion for Limited Admission Pursuant to APR 8(b) (Pro Hac Vice) of Jacques Balette dated September 11, 2014. No. 70422-2-1/2
two attorneys.2 The bailiff put this on the record on February 28, 2013, out of the
presence of the jury. At that time, Jones asked the court to excuse Juror 11.
On February 28, the bailiff reported that Juror 11 lived in the same
neighborhood as one of Regency's attorneys. The bailiffstated that Juror 11 had
not recognized the attorney when asked during voir dire, but recognized her
about two weeks into the trial. According to the bailiff, Juror 11 also said that she
walked in the neighborhood, had seen Regency's attorney and her son, and
knew the name of Regency's attorney's son. Moreover, according to the bailiff,
Juror 11 "wanted [the court] to know that it was on her mind," but that she also
said that "she is an adult, and she can put that aside, and she feels she can be
here."3
The trial court denied Jones's motion to excuse Juror 11, without
prejudice, and encouraged Jones to bring the motion anew when the case was
ready to go to the jury. At this time, Jones stated that she had made her record.
On March 4, 2013, Juror 11 spoke to Regency's attorney while passing
her in the hallway. Regency's attorney disclosed this immediately thereafter in
open court, out of the presence of the jury, and stated that Juror 11 had said "this
is hard."4 At that time, Jones took no action in response to this disclosure.
2 The author of this opinion is neither related to nor acquainted with Leann Cox (Juror 11), the juror in question.
3 Report of Proceedings (Feb. 28, 2013) at 8-9.
4 Report of Proceedings (Mar. 04, 2013) at 36-37. 2 No. 70422-2-1/3
On March 20, 2013, Jones renewed her motion to excuse Juror 11. The
trial court indicated that it had been thinking of this situation throughout the trial
and again denied the motion.
At the conclusion of the trial, the jury found that Regency was not liable.
After the jury returned the verdict, Jones moved for a new trial, claiming
juror misconduct. The court considered declarations submitted by the parties,
the remaining record, and counsel's arguments before denying this motion. The
court then entered an amended judgment on the jury verdict for Regency.
Jones appeals.
DUTY TO DISMISS UNFIT JURORS
Jones argues that the trial court abused its discretion by not questioning
Juror 11 before denying, without prejudice, the request to excuse her during the
presentation of evidence at trial. We hold that the court did not abuse its
discretion.
Under RCW 2.36.110, the court must dismiss unfit jurors. This statute
creates a "continuous obligation" of the court.5
RCW 2.36.110 gives trial courts discretion in deciding whether to dismiss
a juror. This discretion extends to the manner in which the court investigates
alleged misconduct.6 Washington courts "are unwilling to impose on the trial
court a mandatory format for establishing [the] record."7
5 State v. Jorden. 103 Wn. App. 221, 227, 11 P.3d 866 (2000).
6 \± at 229.
7 Id. No. 70422-2-1/4
We review a trial court's decision whether to dismiss a juror for abuse of
discretion.8
In Hough v. Stockbridqe, a juror submitted a note stating that the
defendant appeared to have mental health problems and asking whether the
court had the authority to order a mental health evaluation.9 The defendant
moved to have the juror dismissed because of bias.10 The court considered the
note, heard argument from the parties, and determined that the juror was not
biased.11 Division Two of this court held that the trial court did not abuse its
discretion because the record supported the court's decision.12
Here, the trial court properly exercised its fact finding discretion when it
denied, without prejudice, Jones's motion to dismiss Juror 11 without first
questioning her.
The present case resembles Hough. Instead of a juror's note, the court
relied on the information that the bailiff put on the record, in open court and out of
the presence of the jury. At that time, Regency's attorney provided, on the
record, more details about her relationship with Juror 11 and the nature of their
neighborhood. Under Hough, it was within the court's discretion to make a
decision about whether to dismiss Juror 11 based on this information.
8 State v. Depaz, 165 Wn.2d 842, 852, 204 P.3d 217 (2009).
9 152 Wn. App. 328, 335, 216 P.3d 1077 (2009).
10 Id, at 335-36.
11 ]d, at 341.
12 Id. No. 70422-2-1/5
In sum, nothing in the language of RCW 2.36.110 requires the court to
question a juror before deciding whether to excuse the juror. Accordingly, the
trial judge did not violate RCW 2.36.110 by failing to question Juror 11 after she
revealed she was Regency's attorney's neighbor.
Jones argues that the trial court had an affirmative duty to develop the
record by questioning Juror 11. We disagree.
Significantly, Jones did not ask the court to question Juror 11 at the time
this issue arose. Moreover, Jones did not ask for permission to question Juror
11. Thus, Jones now argues, for the first time, that the trial court abused its
discretion for failing to take actions that Jones did not request below.
Jones supports this argument with citations to cases from the Fifth and
Sixth Circuits.13 Neither case supports Jones's arguments.
In United States v. Nell, the trial court refused to permit additional voir dire
that the defendant had requested.14 After a potential juror answered a general
voir dire question in a way that indicated he might be biased, the defendant
requested permission to ask the juror more specific questions.15 The trial court
denied this request.16 The Fifth Circuit held that this denial was error.17
13 Briefof Appellant at 11 (citing U.S. v. Nell. 526 F.2d 1223 (5th Cir. 1976); Hughes v. U.S.. 258 F.3d 453 (6th Cir. 2001)).
14 526 F.2d 1223, 1228 (5th Cir. 1976).
15 Jd,
16 id,
17 Id. at 1230. No. 70422-2-1/6
In the present case, Jones never requested to question Juror 11. Thus,
Nell is distinguishable.
In Hughes v. United States, a potential juror stated during voir dire that
she could not be fair.16 Neither the court nor defense counsel asked any follow
up questions, and the juror was impaneled.19 The Sixth Circuit held that failure to
question this biased juror was ineffective assistance of counsel that prejudiced
the defendant.20
This case is distinguishable. In the present case, Juror 11 never said she
could not be fair. Rather, according to the information that the bailiff put on the
record, Juror 11 felt she could be fair. Accordingly, reliance on this case is not
persuasive.
We also note that at the time the trial court denied the motion, there does
not appear to have been anything in the record that established either actual or implied bias of Juror 11. Thus, the trial court properly denied the motion, without prejudice to Jones renewing her motion later in the trial.
For these reasons, the trial court did not abuse its discretion when it
denied, without prejudice, Jones's request to excuse Juror 11.
Jones also argues that the trial court violated its duty to ensure an
impartial jury by failing to inform the parties about reported juror misconduct.
18 258 F.3d 453, 456 (6th Cir. 2001).
19]d,
20 Id. at 464. No. 70422-2-1/7
Jones bases her argument on the declaration of Charles Hunger, who
served as an alternate juror. He states in his declaration that during the fifth
week of trial, he told the bailiff that the case was "on the verge of a mistrial."21 He
allegedly told the bailiffthat four jurors, including Juror 11, were discussing the
case during recesses.22 He also stated that this group of jurors was referring to
Jones's attorneys as "out of staters" and "rich lawyers."23
During the hearing on the motion for a new trial, the court noted that the
alternate juror's declaration conflicted with the bailiff's recollection of events.24
The court put on the record that "[t]here are some aspects of [the alternate
juror's] affidavit that do not correspond to the bailiffs clear recollection of how
those conversations developed."25
Jones argues that if the court had disclosed and investigated this report, it
would have revealed Juror 11's bias. This argument fails for two reasons. First,
the record does not clearly show that the court in fact received reports of alleged
juror misconduct. Second, as discussed later in this opinion, the alleged report
fails to establish misconduct.
21 Clerk's Papers at 351 (internal quotation marks omitted).
22 Id, at 351-52.
23 ]d. at 352 (internal quotation marks omitted).
24 Report of Proceedings (May 17, 2013) at 18.
25 Id. No. 70422-2-1/8
It is unclear what the alternate juror reported to the bailiffduring trial. As
discussed earlier, the court noted that the alternate juror's declaration conflicted
with the bailiff's "clear recollection."26 It is for the trial court to resolve conflicting
evidence, and it did so here. There simply is no basis for this court to side with
Jones's representations to this court on factual matters that the trial court
resolved adversely to her below.
Further, as discussed later in this opinion, the court considered these
allegations of misconduct when Jones moved for a new trial. The court
concluded that these allegations did not show misconduct.
DENIAL OF MOTION FOR A NEW TRIAL
Jones next argues that the trial court abused its discretion when it denied
her motion for a new trial. She advances several different theories to support this
claim. Jones argues that Juror 11 committed misconduct during voir dire; that
Juror 11 was actually or impliedly biased; and that the jury committed misconduct
during trial. Because these arguments are all unpersuasive, we reject them.
We review a trial court's denial of a motion for a new trial for abuse of
discretion.27 "The test for determining such an abuse of discretion is whether
such a feeling of prejudice [has] been engendered or located in the minds of the
jury as to prevent [the] litigant from having a fair trial.'"28
26 Report of Proceedings (May 17, 2013) at 18.
27 Hickok-Knight v. Wal-Mart Stores, Inc., 170 Wn. App. 279, 324, 284 P.3d 749 (2012), review denied, 176 Wn.2d 1014 (2013).
28 id, at 325 (internal quotations omitted) (quoting Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 81, 231 P.3d 1211 (2010)). 8 No. 70422-2-1/9
As a preliminary matter, Regency argues that Jones waived her right to
move for a new trial by waiting until after the jury returned its verdict before
moving for a new trial. We disagree.
In order to preserve the right to move for a new trial, a party needs to
make a timely objection or a timely request for relief.29 The party does not need
to specifically request a new trial.30 If a party waits until after the jury has
returned its verdict to object or request relief, the party waives the right to move
for a new trial.31
Here, Jones moved to excuse Juror 11 during the trial. This was a timely
request for relief, and the trial court denied the motion, without prejudice. Before
jury deliberations began, Jones renewed the motion, as the trial court had
suggested, and when alternate jurors were available. There was no waiver.
Claimed Juror Misconduct During VoirDire
Jones argues that Juror 11 committed misconduct during voir dire by
failing to disclose that she was Regency's attorney's neighbor. We hold there
was no such misconduct.
A party is entitled to a new trial based on juror misconduct when itshows
that "a juror failed to answer honestly a material question on voir dire and ... a
29 4 Karl Tegland, Washington Practice: Rules Practice, CR 59 author's cmts. at 525 (6th ed. 2013).
30 id,
31 Id. No. 70422-2-1/10
correct response would have provided a valid basis for a challenge for cause."32
When a juror unintentionally answers a question incorrectly in voir dire, it is not
misconduct.33
Here, the trial court found that Juror 11 had unintentionally failed to
disclose during voir dire that she was Regency's attorney's neighbor. The record
supports this finding. In Juror 11's declaration, she states that she did not
recognize Regency's attorney during voir dire. She states that she had only met
Regency's attorney once and did not recognize her until the second week of trial,
during the presentation of evidence. The court also relied on the fact that Juror
11 had later voluntarily reported that she was Regency's attorney's neighbor to
the bailiff. Thus, substantial evidence supports the trial court's finding of
unintentional failure to disclosure.
Therefore, Juror 11's nondisclosure was unintentional and was not
misconduct. Even if there were not substantial evidence to support the court's
finding, there is nothing to show that a correct answer would have supported a
challenge for cause. Thus, for both reasons, there is simply nothing in this
record to support a different result from that reached by the trial court.
Jones argues that the trial court erred by finding that Juror 11's failure to
disclose was unintentional. Specifically, Jones argues that Juror 11's declaration
is false, and the trial court should not have believed it. But, as discussed above,
32 In re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007).
33 See In re Pet, of Broten, 130 Wn. App. 326, 337-38, 122 P.3d 942 (2005). 10 No. 70422-2-1/11
substantial evidence supports the trial court's finding. Further, appellate courts
do not reweigh credibility determinations on appeal.34
Jones fails in her burden to show there was misconduct by Juror 11.
Actual Bias
Jones also argues that Juror 11 was actually biased, and because Juror
11 was actually biased, the trial court abused its discretion by denying her motion
for a new trial. We disagree.
Actual bias is "the existence of a state of mind on the part of the juror in
reference to the action, or to either party, which satisfies the court that the
challenged person cannot try the issue impartially and without prejudice to the
substantial rights of the party challenging."36 The trial court must dismiss any
juror who, "in the opinion of the judge" is unfit due to actual bias.36
"The trial judge has fact finding discretion in determining whether to grant
or deny a juror's dismissal based on bias."37 The judge can evaluate the juror's
credibility.38
34 State v. Brockob. 159 Wn.2d 311, 336, 150 P.3d 59 (2006).
35 RCW 4.44.170(2).
36 RCW 2.36.110.
37 State v. Kloepper. 179 Wn. App. 343, 353, 317 P.3d 1088, review denied, 180 Wn.2d 1017 (2014).
38 id,
11 No. 70422-2-1/12
We review the trial court's determination of whether to dismiss a juror for
abuse of discretion.39
Here, the trial court properly ruled that Juror 11 was not actually biased.
Juror 11 stated in her declaration that during the whole trial she felt she could be
"fair and impartial." She explained that while she was surprised that she was still
on the jury, she trusted the judgment of the court. These statements were
consistent with the earlier record established by the bailiffwhen she related Juror
11's disclosure that she was a neighbor of one of Regency's attorneys.
Under RCW 2.36.110, the court must dismiss a juror if the juror is biased
"in the opinion of the judge." The trial court ruled that Juror 11 was not biased,
even if she made the comments other jurors attributed to her. The record
supports this decision. Thus, the decision not to dismiss Juror 11 was not an
abuse of discretion, as it falls within "'the range of acceptable choices, given the
facts and the applicable legal standard.'"40
Jones argues that Juror 11 was biased because of comments she
allegedly made to other jurors. Juror 11 said that she told another jurorthat she
"was shocked [that] it had not made a difference to the Court that [Regency's
attorney] was [Juror 11's] neighbor." That juror also reported that Juror 11 said
that she should not be on the jury, and that "it was a miracle" that she had not
39 Depaz, 165Wn.2dat852.
40 State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013) (quoting In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)).
12 No. 70422-2-1/13
been removed from the jury. Jones argues that these comments show Juror 11
knew she was biased.
But these comments do not show that the trial court abused its discretion.
It is for the trial court, not a juror, to determine whether a juror is unfit or biased.
And Juror 11's declaration is evidence that she was not biased. The trial court
determines credibility, and although it did not make express findings about
credibility, it apparently chose to believe Juror 11's declaration. Because the
record supports the trial court's decision, it was not an abuse of discretion.
Jones also argues that the trial court failed to "resolve doubts against the
juror." But Jones does not identify any doubts that the trial court had about Juror
11. She points only to the court's statement that "[Juror 11] has been on [the
court's] mind throughout the entire trial."
Instead, Jones argues that the trial court should not have believed Juror
11's declaration, and should not have relied on the bailiff's statements about
what Juror 11 said. We simply do not agree with this view.
Implied Bias
Jones also argues that Juror 11 was impliedly biased, and because Juror
11 was impliedly biased, the trial court abused its discretion by denying her
motion for a new trial. We again disagree.
Implied bias is "the existence of the facts . .. [that] in judgment of law
disqualify] the juror."41 There are two doctrines of implied bias.
41 RCW 4.44.170(1).
13 No. 70422-2-1/14
The first implied bias doctrine is statutory—RCW 4.44.180 lists exclusive
grounds for an implied bias challenge. Under RCW 4.44.180, a juror can only be
impliedly biased for four reasons:
(1) Consanguinity or affinity within the fourth degree to either party.
(2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to a party; or being a member of the family of, or a partner in business with, or in the employment for wages, of a party, or being surety or bail in the action called for trial, or otherwise, for a party.
(3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction.
(4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation.
Courts broadly construe RCW 4.44.180(4). "Because a great variety of
fact patterns can arise, a trial court must have a measure of discretion in
determining what constitutes an interest."42 Case law shows that an "interest"
under RCW 4.44.180(4) can be attenuated. For example, in an employment
discrimination case against a credit union, a juror who was a member of the
credit union, had a small amount of money in an account there, and had an
outstanding loan from the union, was found to have an "interest."43
42 Kuhn v. Schnall, 155 Wn. App. 560, 574, 228 P.3d 828 (2010) (internal quotation marks omitted).
43 Carle v. McChord Credit Union, 65 Wn. App. 93, 107-09, 827 P.2d 1070 (1992).
14 No. 70422-2-1/15
Under RCW 4.44.180, "[a] juror's acquaintance with a party, by itself, is
not grounds for a challenge for cause."44
The second implied bias doctrine is constitutional. Under the Sixth
Amendment, the court can also find implied bias in "certain exceptional
circumstances."45 "One such circumstance is when a prospective juror
deliberately withholds information during voir dire in order to increase the
likelihood of being seated on the jury."46
Here, Juror 11 was not impliedly biased under RCW 4.44.180. An
acquaintance to a party does not create implied bias.47 An acquaintance with a
party's attorney is a more tenuous connection to the case than an acquaintance
with a party. Thus, it follows that a juror's acquaintance with a party's attorney,
by itself, is not implied bias.
The trial court ruled that the fact that Juror 11 lived in the same
neighborhood as Regency's attorney did not support a challenge for cause.
Living in the same neighborhood as a party's attorney does not fall into any of
RCW 4.44.180's categories. The fact that Juror 11 knew Regency's attorney by
virtue of living in the neighborhood falls short of establishing implied bias. Thus,
this decision was not an abuse of discretion.
44 State v. Tinqdale, 117 Wn.2d 595, 601, 817 P.2d 850 (1991).
45 State v. Boiko, 138 Wn. App. 256, 260-61, 156 P.3d 934 (2007).
46 State v. Cho, 108 Wn. App. 315, 325, 30 P.3d 496 (2001).
47 Tingdale, 117 Wn.2d at 601.
15 No. 70422-2-1/16
Jones argues that Juror 11's relationship as Regency's attorney's
neighbor created an "interest" in the outcome under RCW 4.44.180(4). Jones
submitted documents showing that Juror 11's neighborhood has protective
covenants, which all residents can enforce through litigation. Jones argues that
this creates an incentive for Juror 11 and Regency's attorney to maintain a
positive relationship, a relationship that an adverse jury verdict would threaten.
But as discussed earlier, the trial court has a "measure of discretion in
determining what constitutes an interest."48 The trial court was entitled to reject
the argument that mere protective covenants create the required interest.
Juror 11 was also not impliedly biased under the Sixth Amendment
doctrine. It is unclear whether that doctrine applies to this civil case. But even if
the doctrine does apply, this is not an "exceptional circumstance," as the cases
require.
Jones argues that when a juror withholds a material fact during voir dire, it
creates a presumption of implied bias, even if the disclosure is unintentional.
Jones cites State v. Boiko to support this proposition.49
That case is distinguishable because it involved multiple connections
between the juror and the case. Specifically, the juror was married to a key
witness, had met the victim, had previously heard about the case, knew the
prosecutor, had applied for a job in the prosecutor's office, and was litigating a
48 Kuhn, 155 Wn. App. at 574 (internal quotation marks omitted).
49 138 Wn. App. 256, 156 P.3d 934 (2007).
16 No. 70422-2-1/17
case in which the prosecutor was defense counsel.50 Thus, that case, unlike the
present case, clearly involved "exceptional circumstances." Accordingly, Jones's
reliance on Boiko is misplaced.
Jury Misconduct
Jones also argues that the jury committed misconduct by discussing the
case before deliberation and making derogatory remarks about her attorneys.
We again disagree.
A trial court can grant a new trial based on juror misconduct when there is
"'sufficient misconduct to establish a reasonable doubt that plaintiff was denied a
fair trial.'"51
This court reviews for abuse of discretion a denial of a motion for a new
trial because of misconduct.52 "The test for determining such an abuse of
discretion is whether such a feeling of prejudice [has] been engendered or
located in the minds of the jury as to prevent [the] litigant from having a fair
trial.'"53
50 ]d. at 259, 263.
51 Turner v. Stime, 153 Wn. App. 581, 588, 222 P.3d 1243 (2009) (internal quotation marks omitted) (quoting Gardner v. Malone, 60 Wn.2d 836, 847, 376 P.2d651 (1962)).
52 Hickok-Knight. 170 Wn. App. at 324.
53 id, at 325 (internal quotations omitted) (quoting Collins, 155 Wn. App. at 81).
17 No. 70422-2-1/18
Here, the trial court did not abuse its discretion by denying a new trial.
The alleged misconduct in this case did not create a reasonable doubt that the
trial was not fair.
During trial, some jurors allegedly called Jones's attorneys "rich lawyers"
and "out of staters," and stated that they were "a real suing machine." Other
jurors denied making or hearing these statements. One person, who was an
alternate in the case, stated that some jurors discussed the case before
deliberations. Three jurors, including Juror 11, denied that the jury discussed the
merits of the case before deliberations.
The court ruled that the alleged comments about "rich lawyers" were not
misconduct. The court reasoned that the comments reflected general feelings of
"underlying anger or envy" towards lawyers that are common in the public.54
The court did not believe the comments reflected a prejudice towards Jones's
attorneys that affected the verdict. During voir dire, Jones had informed the jury
that she was seeking 33 million dollars in damages. The court noted that the
high amount of damages "really set this jury on its heels," and may have caused
some of the alleged comments.55
Overall, there was some controverted evidence that indicated the jury had
discussed the case before deliberations. And the court, which had the
opportunity to observe the jurors, believed that the alleged comments about
54 Report of Proceedings (May 17, 2013) at 44.
55 id, 18 No. 70422-2-1/19
Jones's lawyers did not reflect a prejudice that denied Jones a fair trial. Thus,
the court did not abuse its discretion by denying the motion for a new trial.
Jones cites two cases to support her argument that the jury committed
misconduct.56 Both cases are distinguishable.
In the first case, Turner v. Stime, five members of the jury made racially
prejudicial remarks about one of the attorneys.57 Division Three of this court held
that it was not abuse of discretion for the trial court to order a new trial.58
In the present case, the allegedly derogatory remarks were not racially
motivated. And the trial court found that they reflected general feelings about
lawyers rather than prejudice towards Jones's lawyers. Thus, Turner is
distinguishable.
Jones also cites Dalton v. State.59 In that case, one juror felt the plaintiff
"was an opportunist trying to profit from her child's death."60 The court found that
the juror concealed this feeling in voir dire, and ordered a new trial on that
basis.61
56 Brief of Appellant at 28-29 (citing Turner, 153 Wn. App. at 581: Dalton v. State, 115 Wn. App. 703, 63 P.3d 847 (2003)).
57 153 Wn. App. 581, 584-87, 222 P.3d 1243 (2009).
58 id, at 593.
59 115 Wn. App. 703, 63 P.3d 847 (2003).
60 id, at 709.
61 id, at 717. 19 No. 70422-2-1/20
But Jones does not allege that the jurors hid animosity towards Jones or
her attorneys during voir dire. Additionally, the juror's comment in Dalton showed
a stronger bias than the comments allegedly made in this case. Thus, Dalton
does not support Jones's argument.
We affirm the superior court's amended judgment and its order denying
Jones's motion for a new trial.
£ot^. WE CONCUR:
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